162
THE MALPRACTICE CRISIS IN OBSTETRICS AND GYNECOLOGY: IS THERE A SOLUTION? HUGH R.K. BARBER, M.D. Director The Department of Obstetrics and Gynecology Lenox Hill Hospital New York, New York
"And Jesus said, woe unto you also, ye lawyers!" ISASTER STRUCK AMERICAN MEDICINE in the 1960s when the mal-
practice litigation ripoff began its wild and sweeping escalation. It was the beginning of the end of the best health care delivery system that the world has ever known. It was born out of lawyers' greed, many of whom feared unemployment when the no-fault insurance bill was passed. The real problem is too many law schools and too many lawyers; the number of lawyers has grown twice as fast as the general population. It is obvious that practically anyone can enter law school and few are ever asked to leave law school. Although we are virtually inundated by unemployed lawyers, we continue to turn out 50,000 every year. It is surprising that a profession surrounded by so shady a reputation has been able to thrive and at present rules the greatest and most affluent nation the world has ever known. No solution is in sight, but like many intolerable situations there is hope that there will be an uprising against this monstrous
injustice. When Willie Sutton was asked why he robbed banks, he replied, "Because that's where the money is." This explains why there are so many malpractice suits. Many lawyers have made a mockery of justice and have earned the contempt of the public and even of their own colleagues. No-fault automobile insurance marked the beginning of the medical malpractice gold rush for the lawyers. Ninety five percent of all malpractice suits in the United States have been filed since 1964. The lawyer became the winner, the patient the loser, and physicians were totally disillusioned by their patients' ingratitude. This disaster culminated in 1974 in an unbelievable series of crises with physicians on strike, hospital services cut except for emergencies, and acrimonious and Bull. N.Y. Acad. Med.
MALPRACTICE MALPRACTICE
CRISIS CRISIS163
163
inflammatory confrontations between legislators and physicians making daily newspaper headlines. For the first time in modem memory, open warfare broke out between physicians and lawyers. Wounds were inflicted which to this day remain unhealed. There is very little prospect for peace without major changes in the law, changes blocked by legislators, many of whom are lawyers with an obvious conflict of interest, blocking reasonable demands for relief made by practicing physicians.
THE CONTINGENCY FEE The contingency fee is an invitation to barratry and champerty. A major factor in the medical malpractice crisis is the contingency fee and its accompanying evil, the fee split or kickback. Physicians are not allowed to split fees. Why should lawyers be allowed to? If the contingency fee and the fee split or kickback to the referring lawyers and payoffs to runners and case finders were outlawed, malpractice claims would plummet with immediate and dramatic relief of the current crisis. Lawyers claim that without contingency fees the poor would lose their "key to the courthouse" and would not be able to sue a physician or hospital. The answer is that lawyers should emulate physicians by giving their services without fees to their clients who cannot afford them. Lawyers who are making a fortune from the medical malpractice ripoff have become great protagonists for contingency fees and with tears in their eyes state that without it the poor could not get legal aid. This distorts the truth because in actuality just the opposite has occurred. Since lawyers work for a contingency fee rather than for a fee-for-services rendered (as do 99% of other professionals), the larger the award the greater their remuneration. Human nature being what it is, what cases do you think receive the majority of attention? The sensational cases, especially those for which juries might make tremendous awards, rather than those in which it is difficult to disprove a cause and effect for an injury, such as obstetrics and neurosurgery. Negligence for which no large monetary award would be forthcoming receives little or no attention, no matter how obvious the error. It is akin to suing someone with no assets-you cannot collect anything. So instead of helping the little man's access to the legal system, the contingency fee does so only if the case in point promises the possibility of a large settlement. All physicians recognize that some very grave injustices in medical care occasionally occur, but if such a case will not bring recoverable damages, the physician escapes reprimand because no lawyer is interested in the case. A knowledgeable panel would impartially review all cases involving negligence Vol. 67, No. 2, March-April 1991
164
H.R.K. BARBER
without regard to those that might bring a large fee. The legal profession will fight to the death to block anything as logical as this. PROFESSIONAL EXPERT WITNESS
A whole new career has opened up for some of the inadequate physicians who cannot compete in the practice of medicine. They become hired guns, available for a fee. The medical profession does have prostitutes. The great damage that the malpractice threat has brought about is that the patientphysician relationship has been destroyed and every patient now is considered a potential adversary. Murray A. Freedman, ' in his book Society to L&D Stat! Stat! Stat! Stat! makes an excellent point. He states that suppose we put the police (traffic cops) on a contingency basis, that is, 35% of their ticket would go into their own pockets. Can you imagine how many tickets would be written? And for how many minor infractions? The system could not function. Everyone would constantly be getting tickets. At least one third of the drivers would qualify for tickets on a daily basis-either for something they did or did not do. The contingency fee for such policemen would create havoc. The anxiety created might take the joy out of driving. DEFENSIVE MEDICINE2
We are now at the vortex of a malpractice storm with no relief in sight. The issue is not only legal, although reform in the adversarial tort system is necessary, it is not even an issue where patients play a litigation lottery, seeking legalized retaliation for real or imagined injury. Every physician accepts that reasonable compensation should be given for a real injury when the physicians are at fault. The malpractice issue is not only economics, with huge awards for pain and suffering, but escalating cost for defensive medicine which insurance carriers pass on to health care providers. The issue may be one of social justice. Justice for the injured party but also for the vast majority of truly conscientious and competent physicians who are doing the best job they can humanly do. The greatest cost of the malpractice ripoff is the emotional injury that a physician experiences when he believes that he has done the best possible under difficult circumstances. Decreased physician productivity because of such dysfunction cannot be estimated. CEREBRAL PALSY3,4
In New York State the highest awards are for the so called "brain damaged baby" or the baby with mental retardation. There may be more suits in Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS MALPRACTICE CRISIS
165
165~~~~~~~~~~~~~
gynecology, including those for abortions, tubal ligations, laparoscopy, misdiagnosis of ectopic pregnancy, and the "misdiagnosis" of breast cancer. The highest awards in the State of New York in obstetrics and gynecology are related to cerebral palsy. It cannot be denied that the physician is sometimes at fault for an unfavorable outcome, but to hold the obstetrician entirely responsible for a case of cerebral palsy is absurd. The problem of brain damage is too complex. A physician testifying as a so called expert witness who makes such a claim in court must be morally bankrupt or completely uninformed about basic problems relating to pregnancy, delivery, and neonatal course. Very little cerebral palsy is due to birth trauma or acute anoxia. Psychologists, psychiatrists, and pediatricians often speak of brain damage in a child in a way that imputes blame to the physician or midwife who delivered the baby. The question of who is at fault must be raised so that steps may be taken to correct the injustice done to the physician and the harm done to the children. The physician is the butt of the malpractice litigation but the life style and genetics of the parents of the compromised child must be the keynote for the defense of obstetricians under siege in these malpractice cases. In the current medical legal climate, a casual query of "perinatal asphyxia" on an infant's chart is a potential disaster for the physician. But can the brief episode of hypoxia that routinely occurs during delivery actually lead to mental retardation or cerebral palsy? Intrapartum hypoxia is a routine occurrence during vaginal birth but is absolutely unlikely to cause major sequelae. Chronic or repeated antepartum hypoxia, however, can contribute to neurologic defects. Reports indicate that about 2% of severely asphyxiated babies consequently develop cerebral palsy. It is becoming evident that injury to the fetal brain is already present when the asphyxia is recognized. Asphyxia is the result of chronic insult, not the cause of cerebral palsy. Assuming that the fetus is already compromised, it is obvious that labor cannot proceed in a normal manner. Even with careful monitoring and an aggressive plan for delivery in case of asphyxia, cerebral palsy is no more frequent in emergency deliveries than uncomplicated deliveries. This would indicate that the damage has been done over a long period and is unrelated to the intrapartum period of the delivery. Reports by many authorities in various institutions show that "a poor reproductive history is a significant causative factor in cerebral palsy." Family history and parental life style affect fetal outcomes.5 With accumulating support in the literature, a defense lawyer can show that reasonable doubt exists and that the physician is not responsible for fetal brain damage when perinatal asphyxia is present . If the obstetrician Vol. 67, No. 2, March-April 1991
166
166
H.R.K. BARBER H.R.K. BARBER
becomes involved in a suit he or she and the lawyer must take the offensive and make the plaintiff's attorney prove that genetics and lifestyle did not cause the brain damage. Many neurologic disorders, notably mental retardation, have a genetic component. As most courts do not allow genetic testing of plaintiffs after a lawsuit is filed, it is important to obtain studies on questionable infants at birth.6 It has been shown that decelerations in fetal heart rate do not necessarily indicate fetal distress, especially in the presence of good beat to beat variability. Research projects suggest that demonstrable acidosis must be present for at least one hour to cause neurological sequelae. It is important to document fetal condition by use of fetal capillary scalp pH. Apgar scoring, especially at one and five minutes, is not a sensitive predictor of neurologic defects.7 Cord blood gas values obtained at birth are a more reliable indicator of a distressed infant that may have suffered brain damage. To protect fetal health and to minimize the risk of liability, the physician should document maternal smoking, drinking, drug abuse, and weight restrictions during pregnancy; warn the parents of the complications associated with intrauterine growth retardation and if the infant is premature explain the increased likelihood of cerebral palsy and mental retardation to them before delivery; carefully follow postdate pregnancies; obtain cord blood (umbilical arterial blood) gas values (pH-7.2; P02(mm Hg)15; PCO2 (mm Hg)
THE MALPRACTICE CRISIS IN OBSTETRICS AND GYNECOLOGY: IS THERE A SOLUTION? HUGH R.K. BARBER, M.D. Director The Department of Obstetrics and Gynecology Lenox Hill Hospital New York, New York
"And Jesus said, woe unto you also, ye lawyers!" ISASTER STRUCK AMERICAN MEDICINE in the 1960s when the mal-
practice litigation ripoff began its wild and sweeping escalation. It was the beginning of the end of the best health care delivery system that the world has ever known. It was born out of lawyers' greed, many of whom feared unemployment when the no-fault insurance bill was passed. The real problem is too many law schools and too many lawyers; the number of lawyers has grown twice as fast as the general population. It is obvious that practically anyone can enter law school and few are ever asked to leave law school. Although we are virtually inundated by unemployed lawyers, we continue to turn out 50,000 every year. It is surprising that a profession surrounded by so shady a reputation has been able to thrive and at present rules the greatest and most affluent nation the world has ever known. No solution is in sight, but like many intolerable situations there is hope that there will be an uprising against this monstrous
injustice. When Willie Sutton was asked why he robbed banks, he replied, "Because that's where the money is." This explains why there are so many malpractice suits. Many lawyers have made a mockery of justice and have earned the contempt of the public and even of their own colleagues. No-fault automobile insurance marked the beginning of the medical malpractice gold rush for the lawyers. Ninety five percent of all malpractice suits in the United States have been filed since 1964. The lawyer became the winner, the patient the loser, and physicians were totally disillusioned by their patients' ingratitude. This disaster culminated in 1974 in an unbelievable series of crises with physicians on strike, hospital services cut except for emergencies, and acrimonious and Bull. N.Y. Acad. Med.
MALPRACTICE MALPRACTICE
CRISIS CRISIS163
163
inflammatory confrontations between legislators and physicians making daily newspaper headlines. For the first time in modem memory, open warfare broke out between physicians and lawyers. Wounds were inflicted which to this day remain unhealed. There is very little prospect for peace without major changes in the law, changes blocked by legislators, many of whom are lawyers with an obvious conflict of interest, blocking reasonable demands for relief made by practicing physicians.
THE CONTINGENCY FEE The contingency fee is an invitation to barratry and champerty. A major factor in the medical malpractice crisis is the contingency fee and its accompanying evil, the fee split or kickback. Physicians are not allowed to split fees. Why should lawyers be allowed to? If the contingency fee and the fee split or kickback to the referring lawyers and payoffs to runners and case finders were outlawed, malpractice claims would plummet with immediate and dramatic relief of the current crisis. Lawyers claim that without contingency fees the poor would lose their "key to the courthouse" and would not be able to sue a physician or hospital. The answer is that lawyers should emulate physicians by giving their services without fees to their clients who cannot afford them. Lawyers who are making a fortune from the medical malpractice ripoff have become great protagonists for contingency fees and with tears in their eyes state that without it the poor could not get legal aid. This distorts the truth because in actuality just the opposite has occurred. Since lawyers work for a contingency fee rather than for a fee-for-services rendered (as do 99% of other professionals), the larger the award the greater their remuneration. Human nature being what it is, what cases do you think receive the majority of attention? The sensational cases, especially those for which juries might make tremendous awards, rather than those in which it is difficult to disprove a cause and effect for an injury, such as obstetrics and neurosurgery. Negligence for which no large monetary award would be forthcoming receives little or no attention, no matter how obvious the error. It is akin to suing someone with no assets-you cannot collect anything. So instead of helping the little man's access to the legal system, the contingency fee does so only if the case in point promises the possibility of a large settlement. All physicians recognize that some very grave injustices in medical care occasionally occur, but if such a case will not bring recoverable damages, the physician escapes reprimand because no lawyer is interested in the case. A knowledgeable panel would impartially review all cases involving negligence Vol. 67, No. 2, March-April 1991
164
H.R.K. BARBER
without regard to those that might bring a large fee. The legal profession will fight to the death to block anything as logical as this. PROFESSIONAL EXPERT WITNESS
A whole new career has opened up for some of the inadequate physicians who cannot compete in the practice of medicine. They become hired guns, available for a fee. The medical profession does have prostitutes. The great damage that the malpractice threat has brought about is that the patientphysician relationship has been destroyed and every patient now is considered a potential adversary. Murray A. Freedman, ' in his book Society to L&D Stat! Stat! Stat! Stat! makes an excellent point. He states that suppose we put the police (traffic cops) on a contingency basis, that is, 35% of their ticket would go into their own pockets. Can you imagine how many tickets would be written? And for how many minor infractions? The system could not function. Everyone would constantly be getting tickets. At least one third of the drivers would qualify for tickets on a daily basis-either for something they did or did not do. The contingency fee for such policemen would create havoc. The anxiety created might take the joy out of driving. DEFENSIVE MEDICINE2
We are now at the vortex of a malpractice storm with no relief in sight. The issue is not only legal, although reform in the adversarial tort system is necessary, it is not even an issue where patients play a litigation lottery, seeking legalized retaliation for real or imagined injury. Every physician accepts that reasonable compensation should be given for a real injury when the physicians are at fault. The malpractice issue is not only economics, with huge awards for pain and suffering, but escalating cost for defensive medicine which insurance carriers pass on to health care providers. The issue may be one of social justice. Justice for the injured party but also for the vast majority of truly conscientious and competent physicians who are doing the best job they can humanly do. The greatest cost of the malpractice ripoff is the emotional injury that a physician experiences when he believes that he has done the best possible under difficult circumstances. Decreased physician productivity because of such dysfunction cannot be estimated. CEREBRAL PALSY3,4
In New York State the highest awards are for the so called "brain damaged baby" or the baby with mental retardation. There may be more suits in Bull. N.Y. Acad. Med.
MALPRACTICE CRISIS MALPRACTICE CRISIS
165
165~~~~~~~~~~~~~
gynecology, including those for abortions, tubal ligations, laparoscopy, misdiagnosis of ectopic pregnancy, and the "misdiagnosis" of breast cancer. The highest awards in the State of New York in obstetrics and gynecology are related to cerebral palsy. It cannot be denied that the physician is sometimes at fault for an unfavorable outcome, but to hold the obstetrician entirely responsible for a case of cerebral palsy is absurd. The problem of brain damage is too complex. A physician testifying as a so called expert witness who makes such a claim in court must be morally bankrupt or completely uninformed about basic problems relating to pregnancy, delivery, and neonatal course. Very little cerebral palsy is due to birth trauma or acute anoxia. Psychologists, psychiatrists, and pediatricians often speak of brain damage in a child in a way that imputes blame to the physician or midwife who delivered the baby. The question of who is at fault must be raised so that steps may be taken to correct the injustice done to the physician and the harm done to the children. The physician is the butt of the malpractice litigation but the life style and genetics of the parents of the compromised child must be the keynote for the defense of obstetricians under siege in these malpractice cases. In the current medical legal climate, a casual query of "perinatal asphyxia" on an infant's chart is a potential disaster for the physician. But can the brief episode of hypoxia that routinely occurs during delivery actually lead to mental retardation or cerebral palsy? Intrapartum hypoxia is a routine occurrence during vaginal birth but is absolutely unlikely to cause major sequelae. Chronic or repeated antepartum hypoxia, however, can contribute to neurologic defects. Reports indicate that about 2% of severely asphyxiated babies consequently develop cerebral palsy. It is becoming evident that injury to the fetal brain is already present when the asphyxia is recognized. Asphyxia is the result of chronic insult, not the cause of cerebral palsy. Assuming that the fetus is already compromised, it is obvious that labor cannot proceed in a normal manner. Even with careful monitoring and an aggressive plan for delivery in case of asphyxia, cerebral palsy is no more frequent in emergency deliveries than uncomplicated deliveries. This would indicate that the damage has been done over a long period and is unrelated to the intrapartum period of the delivery. Reports by many authorities in various institutions show that "a poor reproductive history is a significant causative factor in cerebral palsy." Family history and parental life style affect fetal outcomes.5 With accumulating support in the literature, a defense lawyer can show that reasonable doubt exists and that the physician is not responsible for fetal brain damage when perinatal asphyxia is present . If the obstetrician Vol. 67, No. 2, March-April 1991
166
166
H.R.K. BARBER H.R.K. BARBER
becomes involved in a suit he or she and the lawyer must take the offensive and make the plaintiff's attorney prove that genetics and lifestyle did not cause the brain damage. Many neurologic disorders, notably mental retardation, have a genetic component. As most courts do not allow genetic testing of plaintiffs after a lawsuit is filed, it is important to obtain studies on questionable infants at birth.6 It has been shown that decelerations in fetal heart rate do not necessarily indicate fetal distress, especially in the presence of good beat to beat variability. Research projects suggest that demonstrable acidosis must be present for at least one hour to cause neurological sequelae. It is important to document fetal condition by use of fetal capillary scalp pH. Apgar scoring, especially at one and five minutes, is not a sensitive predictor of neurologic defects.7 Cord blood gas values obtained at birth are a more reliable indicator of a distressed infant that may have suffered brain damage. To protect fetal health and to minimize the risk of liability, the physician should document maternal smoking, drinking, drug abuse, and weight restrictions during pregnancy; warn the parents of the complications associated with intrauterine growth retardation and if the infant is premature explain the increased likelihood of cerebral palsy and mental retardation to them before delivery; carefully follow postdate pregnancies; obtain cord blood (umbilical arterial blood) gas values (pH-7.2; P02(mm Hg)15; PCO2 (mm Hg)
